Veterans Discharge Upgrade Manual

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1 Veterans Discharge Upgrade Manual Copyright 2011 The Connecticut Veterans Legal Center. Do not copy or distribute without express written permission. 1

2 Veterans Discharge Upgrade Manual Connecticut Veterans Legal Center, 2011 This manual was prepared on behalf of the Connecticut Veterans Legal Center by Laura Keay and Kathryn Cahoy, students in the Yale Law School Veterans Legal Services Clinic, working under the supervision of Professor Jeffrey Selbin. We are grateful to Kathleen Gilberd, David Addlestone, Eugene Fidell, and Margaret Middleton for their helpful insights and revisions to this manual. We would also like to thank David Addlestone and Bart Stichman for granting us permission to reprint portions of their authoritative 1982 and 1990 treatises on this subject. The treatises are reproduced at DISCLAIMER: This guide is intended as an introductory tool for attorneys and other advocates representing veterans in discharge upgrade cases. This guide does not purport to provide legal advice or to give an opinion as to the appropriate course of action in a particular case. Veterans advocates should always conduct their own research on the best course of action for their particular case and should always check any information contained in this guide against the relevant statute or regulation to ensure its accuracy. 2

3 TABLE OF CONTENTS I. Introduction... 5 II. Military Discharge Overview... 6 A. Discharge Documents (DD-214)... 6 B. Types of Discharges... 7 C. Potential Consequences of Discharges VA Benefits Stigma... 9 III. Choosing a Venue A. The Discharge Review Board (DRB) Upgrade Process Jurisdiction and Eligibility Requirements Standards of Review Composition of Panels Personal Appearances before the DRB Options for Reconsideration B. The Board for Correction of Military Records (BCMR) Upgrade Process Jurisdiction and Eligibility Requirements Standards of Review Composition of Panels BCMR Application Review Options for Reconsideration IV. Preparing a Case A. Forms to Prepare B. Additional Materials to Submit V. Alternate Avenues for Relief A. Appeals to Federal Court B. Litigation in the Court of Federal Claims C. Veterans Benefits Application VI. Summary VII. Supplemental Material A. Standard Form B. DD Form C. DD Form

4 D. Preparing a Discharge Upgrade Application VIII. Additional Resources A. Forms B. Statutes and Regulations C. BCMR Statutes and Regulations D. DRB Statutes and Regulations E. Current Discharge Regulations F. Publications G. BCMR Publications H. DRB Publications

5 Veterans Discharge Upgrade Manual Connecticut Veterans Legal Center, 2011 I. Introduction Most of Connecticut s 250,000 veterans received an honorable discharge when they left the military. However, thousands of veterans in the state received a less than honorable discharge, which can prevent them from obtaining educational, medical or pension benefits from the Department of Veterans Affairs and can limit their civilian employment opportunities. Post-traumatic stress disorder, traumatic brain injury, or other service-related injuries may have led to the unfavorable discharge. As a result, many otherwise deserving veterans are ineligible for the very benefits that would help them cope with their in-service trauma. Veterans can upgrade their discharge status through administrative procedures established by the service branches and in federal court. However, these administrative and judicial processes are complicated, confusing, and time-consuming for many veterans. Fortunately, lawyers and other trained advocates can help veterans apply for discharge upgrades and receive critical services. This manual provides a basic overview of military discharges and how advocates can help veterans upgrade their discharges through administrative procedures: Part II explains the types of military discharges and why veterans seek upgrades. Part III describes Discharge Review Boards and Boards for Correction of Military Records, the two main administrative avenues of relief for veterans seeking discharge upgrades. Part IV provides instruction for preparing applications to these boards. Part V identifies other potential sources of judicial relief that may be appropriate in certain cases. Part VI summarizes the information presented in the manual. Part VII includes sample forms and other helpful materials. Part VIII lists additional resources for advocates who want to learn more about discharge upgrades. 5

6 II. Military Discharge Overview All servicemembers are discharged when their military term of service expires. A discharge may occur when a servicemember elects or is forced to leave the military as a result of a medical disability, punishment, administrative reason, or simply the end of a term of service. This section describes the paperwork veterans receive when they are discharged, the types of discharges, who administers discharges, and why veterans may want a discharge upgrade. A. Discharge Documents (DD-214) When veterans leave the service, they receive discharge documents, the most important of which is the DD-214. This document comes in a short form, which is edited to display only basic information, and a long form. 1 Both forms contain general information including dates of entry and discharge, total time in service, rank, decorations, and military education. Additionally, the long form includes the characterization of service (e.g. honorable, dishonorable, etc.), reason for discharge (e.g. completion of term of service, medical disability, etc.), re-enlistment code (indicating the circumstances under which the veteran can reenter the service), and a code matching the reason for discharge. Because the long form contains more detailed information, it is usually the one required by the Department of Veterans Affairs and employers who request to see the DD-214 of prospective employees. Therefore, the information that appears on this simple document can significantly affect many aspects of a veteran s life, including the ability to find employment or obtain VA benefits. Veterans usually seek discharge upgrades to change the information that appears on their DD The military did not begin to issue a short form DD-214 until

7 B. Types of Discharges Discharges before the end of term of service are classified as administrative or punitive. 2 This point is often confused, but is central to understanding the discharge process. 1. Administrative discharges are less serious in nature and can only be given, as their name implies, administratively, and cannot be given by court-martial. In order of desirability, from most to least, administrative discharges are classified as follows: a. Honorable Discharge [HD]; b. General Discharge (Under Honorable Conditions) [GD]; and c. Discharge Under Other Than Honorable Conditions [OTH] (referred to as Undesirable Discharge [UD] until the early 1980s). Most servicemembers receive an honorable discharge. Today, only a few specifically defined categories warrant OTH; and in cases where commanders may issue an OTH, procedural rights are greater. Because of restrictions on issuing this type of discharge, opportunities for legal error in the discharge proceedings may be greater. 2. Punitive discharges are more serious and can only be given as a sentence from a court-martial with the requisite authority. Courts-martial can issue punitive discharges but do not have the authority to grant the less serious administrative discharges. In order of severity, from least to most, punitive discharges are classified as follows: a. Bad Conduct Discharge [BCD]; b. Dishonorable Discharge [DD]; and c. Dismissal (for officers only). Not all courts-martial have the authority to issue both of these discharges as punishment. A summary court-martial cannot issue any discharge, and a special court-martial [SPCM] may only issue a Bad Conduct Discharge. Only a general court-martial can issue a Dishonorable Discharge. Courts-martial do not have the power to discharge officers, so an officer may instead be sentenced to dismissal. A dismissal is considered the equivalent of a Dishonorable Discharge. 2 There are exceptions to these two categories, including a medical discharge, which is not classified as administrative or punitive and is handled through another process. 7

8 Types of Military Discharges Administrative Discharges Punitive Discharges 1. Honorable (HD) 1. Bad Conduct (BCD) 2. General (GD) 2. Dishonorable (DD) 3. Under Other than Honorable Conditions 3. Dismissal (for officers) (OTH, previously known as UD) Veterans are not only discharged due to misconduct. They may be discharged for a variety of other reasons, including medical disability. For example, when a veteran has been discharged after being diagnosed with a personality disorder, the diagnosis will appear on the DD-214. The diagnosis could be incorrect, contested, or unjustly stigmatizing for the veteran, and the veteran may want to remove such a reference. Veterans may also want to remove other stigmatizing reasons for discharge from the DD- 214 including misconduct/drug abuse or unsatisfactory performance. Administrative agencies that handle discharge upgrade applications can also consider requests to change the reason for discharge. C. Potential Consequences of Discharges This section presents a few common reasons why a veteran may pursue a discharge upgrade. The specific reason for pursuing a discharge upgrade may be different for each veteran, and even the general categories presented below may affect each veteran in a different way. Thus, this section is meant to provide advocates with a general overview of common motivations for pursuing discharge upgrades and is not meant to be exhaustive. 1. VA Benefits An important concern for veterans pursuing a discharge upgrade may be eligibility for benefits from the Department of Veterans Affairs (VA). A discharge upgrade may qualify a veteran for VA medical care, disability compensation benefits, educational benefits, home loans, or a pension. Advocates should be careful to understand what type of benefits the veteran wants, whether he/she may already be eligible for other benefits, and whether the reviewing body s decision will affect the veteran s eligibility for VA purposes. A discharge upgrade may not be the only way to 8

9 obtain benefits; and, depending on the case, it may not qualify a veteran for the desired benefits. Therefore, understanding a client s ultimate goal can be central to advising the client and making strategic decisions. VA benefits law is complex and evolving, and we do not intend to review it comprehensively here. However, some generalizations on how discharges affect benefits may be beneficial to understanding why clients may be seeking upgrades. Please keep in mind that none of these rules are without exception. Veterans with an HD or GD are almost always eligible for most VA benefits, even if the discharge characterization resulted from an upgrade. Those with an OTH can usually obtain VA medical care for disabilities incurred in the line of duty but must receive a favorable character of discharge determination from VA to receive any other benefits, including disability compensation benefits. If a BCD is issued by a special court-martial, the veteran may be eligible for some benefits if VA makes a favorable character of discharge determination. However, a BCD issued by a general court-martial or a DD makes the veteran ineligible for all benefits. 3 VA has an adjudicatory process through which it can award benefits in some cases despite these rules, so veterans should also consider submitting an application to VA Stigma Any less than honorable discharge can carry stigma. Since about 90% of all discharges issued are Honorable, a discharge of that type is commonly regarded as indicating acceptable, rather than exemplary service. In consequence, anything less than an Honorable Discharge is viewed as derogatory, and inevitably stigmatizes the recipient. 5 This unmistakable social stigma... greatly limits the opportunities for both public and private civilian employment. 6 In addition to social stigma, many veterans feel the character of their discharge does not reflect the overall service and sacrifice they made for their country. 3 Except in cases of insanity at the time of discharge. BARTON F. STICHMAN AND RONALD B. ABRAMS, VETERANS BENEFITS MANUAL 29 (2009). 4 See infra Part V.C. 5 DAVID ADDLESTONE ET AL., MILITARY DISCHARGE UPGRADING, AND INTRODUCTION TO VETERANS ADMINISTRATION LAW: A PRACTICE MANUAL DUP fn.6 (1982) (quoting Bland v. Connally, 293 F.2d 852, 853 n.1 (D.C. Cir. 1961)). 9

10 Some discharges relate to stigmatizing medical conditions. As noted above, a veteran discharged for a personality disorder diagnosis will have a DD-214 that clearly displays personality disorder. Anyone who views the DD-214, including potential employers, will see that the veteran has been diagnosed with this disorder, regardless of whether the veteran wished to share that private health information. Some of these diagnoses are incorrect or inconclusive, and a veteran may not want her records to include such a diagnosis. III. Choosing a Venue Discharge upgrade cases can proceed through two main administrative avenues. First, each military branch has a Discharge Review Board (DRB). These boards specialize in reviewing discharge upgrade applications and applications for changes in reason for discharge, and they tend to be a more successful route to obtaining a discharge upgrade, although statistics vary depending on the service branch and the individual case. However, the DRBs have strict 15-year statutes of limitation, and veterans who were discharged or dismissed by general court-martial cannot apply to the DRBs. Veterans applying after the DRB statute of limitations expires must proceed to the second option applying for a discharge upgrade to their service department s Board for Correction of Military Records (BCMR). BCMRs have a waivable 3-year time limit and the authority to upgrade discharges issued by general courts-martial or to change a discharge to or from disability discharge or retirement. BCMRs have authority to make other changes that DRBs cannot. However, if a veteran is eligible to apply to a DRB, the BCMR will require the veteran to apply to the DRB first. Each service department has its own DRB and BCMR. Therefore, there are four DRBs and four BCMRs one each for the Army, Navy, Air Force, and Coast Guard. Marine Corps veterans apply to the Navy boards. The following sections refer generally to the DRBs and BCMRs, though each service department s standards and practices may differ slightly. 6 Id. at

11 Army: Navy & Marine Corps: Air Force: Coast Guard: Discharge Upgrade Boards Discharge Review Boards (DRBs) Army Review Boards Agency ADRB 1901 South Bell Street Arlington, VA (See Secretary of the Navy Council of Review Boards ATTN: Naval Discharge Review Board 720 Kennon Ave S.E., Suite 309 Washington Navy Yard, DC Air Force Review Boards Agency SAF/MRBR 550-C Street West, Suite 40 Randolph AFB, TX Commandant (CG-122) Attn: Office of Military Personnel US Coast Guard nd Street S.W., Stop 7801 Washington, DC Boards for Correction of Military Records (BCMRs) Army Review Boards Agency Army Board for Correction of Military Records 1901 South Bell Street, 2nd Floor Arlington, VA Board for Correction of Naval Records 2 Navy Annex Washington, DC Board for Correction of Air Force Records SAF/MRBR 550-C Street West, Suite 40 Randolph AFB, TX Department of Homeland Security Office of the General Counsel Board for Correction of Military Records 245 Murray Lane, Stop 0485 Washington, DC A. The Discharge Review Board (DRB) Upgrade Process 1. Jurisdiction and Eligibility Requirements DRBs have jurisdiction both to upgrade the character of a discharge (e.g. from General to Honorable) and to change the reason for discharge (e.g., to remove homosexuality from the DD-214 as the reason for discharge). 7 Any former member of the Armed Forces may apply, but veterans who were discharged or dismissed by general court-martial (including all veterans with dishonorable discharges) are ineligible for DRB review. 8 Veterans discharged by special court-martial may only request a change of characterization of their discharge, and they will only be granted discharge upgrades for clemency reasons: DRBs do not have the power to overturn the findings of a court C.F.R. 70.8(a)(3). 11

12 martial. DRBs also do not have the power to lower discharges, change re-enlistment codes, make decisions regarding disability and retirement, reinstate veterans into military service, or recall any person to active duty. 9 Veterans must apply within 15 years of the date of discharge. 10 Any requests for discharge upgrades after 15 years must go through the appropriate BCMR. 2. Standards of Review Standards of review for the DRBs are codified in 32 C.F.R and 10 U.S.C Generally, DRBs will only upgrade discharges on grounds of equity or propriety. 11 However, if an applicant was discharged by special court-martial, the discharge may be upgraded only for purposes of clemency. 12 A DRB may upgrade a discharge on grounds of propriety for two reasons: (1) An error of fact, law, procedure, or discretion occurred, and the error was prejudicial to the veteran during the discharge process; or (2) A change in policy has been enacted and the change is expressly made retroactive to the type of case. 13 A DRB may upgrade a discharge on grounds of equity for three reasons: (1) The current discharge policies and procedures are materially different than those that led to the applicant s discharge. 14 For example, a discharge may be deemed inequitable if [t]here is substantial doubt that the applicant would have received the same discharge if relevant current policies and procedures had been available to the applicant at the time of the discharge proceedings under consideration; 15 (2) The discharge was inconsistent with disciplinary standards at the time of discharge; 16 or (3) Based on evidence relating to quality of service or capability to serve. 17 For determinations based on quality of service, DRBs may consider, but are not limited to considering, factors such as the applicant s service history; military ranks, ratings, awards, and decorations; letters of commendation or reprimand; wounds received in action; acts of merit; length of service; prior military service; convictions by court- 8 Dep t. of Def. Instruction , April 4, at E2.1.1 [hereinafter DoDI ] C.F.R C.F.R C.F.R U.S.C. 1553(a) C.F.R. 70.9(b) C.F.R. 70.9(c)(1) C.F.R. 70.9(c)(1)(ii); DoDI , at E C.F.R. 70.9(c)(2); DoDI , at E C.F.R. 70.9(c)(3); DoDI , at E

13 martial; non-judicial punishments; civil convictions; records of unauthorized absence; and records relating to the discharge. 18 Evidence relating to prior military service or outstanding post-service conduct (including character references) is applicable if it can help provide a basis for a more thorough understanding of the performance of the applicant during the period of service that is the subject of the discharge review. 19 Equitable relief based on capability to serve may take into account the applicant's: Total capabilities, including age, education, and ability to adjust to military service; Family and personal problems that may have affected the applicant s ability to serve; Arbitrary or capricious action by individuals in authority over the applicant; and Discrimination as documented by records or other evidence. 20 Equitable considerations based on quality of service or capability to serve suggest that the DRB will take into account mitigating circumstances surrounding any offenses that led to an unfavorable discharge. For example, a servicemember with undiagnosed PTSD could have committed offenses that were a result of the disease rather than intentional misconduct. Also, a servicemember who received news of a family emergency might have gone AWOL due to short-term loss of judgment rather than a desire to desert his or her fellow servicemembers. Consequently, a veteran should mention and explain any mitigating factors to the DRB. Discharge Review Boards may reconsider previously denied applications that meet certain standards of review. According to 32 C.F.R. 70.8(8), a board may reconsider an application when: Previous consideration was on the motion of the DRB, rather than the veteran; The applicant did not have a personal appearance hearing for the first application, but the applicant now requests a hearing; The relevant discharge policy has changed and has been made expressly retroactive; Current discharge policies and procedures are substantially more favorable to the applicant than the discharge policies and procedures under which the applicant was discharged; C.F.R. 70.9(c)(3)(i); DoDI , at E DoDI , at E C.F.R. 70.9(c)(3)(ii); DoDI , at E

14 The veteran was not represented by counsel or a representative in a previous application but will be for the reconsideration; or The applicant presents new, substantial, and relevant evidence that was not available to the applicant at the time of original review by the DRB. Discharge Review Boards operate with a presumption of regularity in the conduct of governmental affairs. 21 This means that the DRBs function with legal presumptions that government officials act properly in carrying out their duties, that military records are correct, and that the statutes and regulations are constitutional. Where error is not apparent in the military record, the applicant carries the burden of proof to show substantial credible evidence that the discharge was inequitable or improper. 22 Court opinions are binding on DRBs, but prior DRB decisions are merely persuasive and are not binding precedent Composition of Panels In general, DRB panels consist of 5 military officers chosen by the Secretary of each military department. 24 Three favorable votes are needed to change any aspect of the discharge. 25 Some special rules apply in certain situations. For example, if the veteran served during a period of war or contingency operation and was later diagnosed with posttraumatic stress disorder or traumatic brain injury, the review board must include a physician, clinical psychologist, or psychiatrist, and the case must be expedited. 26 Also, Naval DRB panels that review either Navy or Marine Corps cases must include at least three panel members who belong to applicant s service branch (Navy or Marine Corps) Personal Appearances Before the DRB DRB applicants can choose to apply for a records review, for a personal hearing in the Washington, D.C. area, or for a hearing before a traveling board (Army and Air Force only). Generally, applicants who have hearings have been more likely to receive C.F.R (b)(12)(vi); DoDI , at E C.F.R (b)(12)(vi); DoDI , at E C.F.R. 70.8(e)(1)(iii)(D); DoDI , at E U.S.C. 1553(a); 32 C.F.R. 70.8(b)(1) C.F.R. 70.8(c)(8) U.S.C. 1553(d). 14

15 upgrades than applicants who only have records reviews. When deciding whether to apply for a records review or a hearing, an advocate should take into account the strength of arguments (and whether they can be presented well in a written application), the client s personality and ability to present the case well before a board of officers, the costs of travel or ability to be seen by a traveling board, and the timing of the application (especially if the fifteen year statute of limitations is about to run and the applicant will not have another chance to personally appear before the Board). If DRB applicants apply for a records review first and then are denied a discharge upgrade, they are entitled to apply again for a personal hearing (Army, Air Force, and Navy only). This effectively gives applicants two opportunities for review, but only if applicants apply for a records review first. The veteran will receive the decisional document explaining why the application was denied during the records review, and this document could be an advantage when preparing for the subsequent personal hearing because the veteran will know why the board made its initial denial and can tailor the personal hearing application to address those concerns. On the other hand, the Boards have all prior applications on file, so any flaws in the first application will still be available to the board the second time around. Since not all can be explained away in a second application, the prejudice of a prior denial could outweigh the benefit of two chances before the board. 5. Options for Reconsideration In rare cases, DRB decisions might be automatically reviewed by the Secretary of the relevant military department, in which case the applicant either will be permitted to participate (in some Navy cases) or will be notified of the final decision after review (in Army, Air Force, and some Navy cases). Applicants have the right to an entirely new DRB review if any of the conditions listed in 32 C.F.R. 70.8(8) are met. 28 Veterans may appeal DRB decisions in federal court under the Administrative Procedure Act, which carries a 6-year statute of limitations from the date of the DRB decision. 29 Appeals may be brought in the district C.F.R (b). 28 See supra Part III.A U.S.C

16 where the veteran was discharged, where the veteran currently resides, or in Washington, D.C., where the Secretaries of the service departments are located. However, advocates should consult controlling case law in these districts because some circuit courts have required veterans to exhaust their administrative remedies, including application to the BCMR, before seeking review in federal district court. B. The Board for Correction of Military Records (BCMR) Upgrade Process 1. Jurisdiction and Eligibility Requirements BCMRs have more extensive authority to alter military discharges than DRBs. 30 BCMRs can upgrade any discharge characterization and change any reason for discharge. In addition, they can void discharges; change them to or from medical retirement; change re-enlistment codes; change the date of issue of a discharge (which may result in back pay); remove inaccurate performance evaluations or other damaging documents from the record; and, under rare circumstances, reinstate veterans into military service. Discharge upgrade cases make up only a fraction of the extensive caseload of the BCMRs. BCMRs cannot lower discharges, compel the attendance of witnesses, expunge a special or general court-martial conviction, 31 or award payment to veterans for expenses incurred in preparing an application and presenting a case to the board. 32 Veterans must apply to a BCMR within three years of discover[ing] the error or injustice for which they seek relief. 33 Jurisdictions sometimes conflict about when this time period begins, but the Court of Appeals for the District of Columbia expressly held that an applicant must have actual knowledge of the error or injustice constructive notice is not enough. 34 This actual knowledge may occur on the date of discharge, the date of the most recent unsuccessful DRB application, or another date when the applicant discovered the error or injustice. The time period also cannot begin while the U.S.C However, court-martial convictions that were issued before the Uniform Code of Military Justice (UCMJ) was enacted in May 31, 1951, may be expunged by BCMRs U.S.C U.S.C. 1552(b). 34 Ridgely v. Marsh, 866 F.2d 1526, 1529 (D.C. Cir. 1989); see also Dickson v. Sec y of Def., 68 F.3d 1396, 1405 (D.C. Cir. 1995). 16

17 servicemember is on active duty. 35 BCMRs can waive the three-year time limit in the interest of justice, 36 so veterans should not hesitate to submit applications after the time limit has passed. The Boards are required to make at least a cursory review of the merits of the case before deciding whether to waive the three-year time limit Standards of Review Unlike DRBs, BCMRs have not clearly codified or published their standards of review. Nevertheless, 10 U.S.C and the federal regulations corresponding to each branch of the military state that BCMRs may change military records of any member or former member of the armed forces to correct any error or injustice. 38 Discharges issued by a special or general court-martial may only be upgraded on clemency grounds. 39 As noted above, the three-year time limit may be waived by any BCMR if it is in the interest of justice to do so. 40 The terms error, injustice, clemency, and in the interest of justice are not clearly defined by statute. However, one expert has identified parallels between the BCMR s error and the DRB s impropriety standard and between the BCMR s injustice and the DRB s inequity standard. 41 Others have noted that BCMRs consider post-service conduct to be very important when deciding whether to grant a discharge upgrade, especially when an applicant seeks to upgrade a discharge issued by a courtmartial on clemency grounds. 42 Mitigating circumstances surrounding offenses, evidence of subsequent rehabilitation, good post-service conduct, and evidence of exemplary citizenship and character are also taken very seriously by BCMRs in discharge 35 Servicemembers Civil Relief Act, 50 U.S.C. App ; Detweiler v. Peña, 38 F.3d 591 (D.C. Cir. 1994) U.S.C. 1552(b). 37 Dickson, 68 F.3d at 1405; Allen v. Card, 799 F. Supp. 158, 166 (D.D.C. 1992) U.S.C. 1552(a)(1); 32 C.F.R (b)(4)(i), 723.1, 865.0; 33 C.F.R (a). See also Mudd v. White, 309 F.3d 819 (D.C. Cir. 2002), holding that applicants must be members or former members of the armed forces (or their heirs or legal representatives) to have standing under 10 U.S.C. 1552(g) U.S.C. 1552(f)(2) U.S.C. 1552(b). 41 Kathleen Gilberd, Upgrading Less-Than-Fully-Honorable Discharges, in THE AMERICAN VETERANS AND SERVICEMEMBERS SURVIVAL GUIDE 346, (Veterans for America ed., 2009) [hereinafter Survival Guide]. 42 Survival Guide at 353; Military Law Task Force, National Lawyer s Guild, Discharge Upgrading and Discharge Review 3, available at [hereinafter Discharge Upgrading]. 17

18 upgrade cases. 43 Otherwise, BCMRs generally consider the same factors that are important to DRBs. Applicants seeking a waiver of the time limit in the interest of justice are generally advised to simply argue that the merits of the case warrant the waiver. 44 The presumptions and burdens of proof are the same in BCMR cases as they are in DRB cases. Boards presume the records are correct as issued, and applicants must provide material evidence showing that their records should be corrected Composition of Panels Each branch of the military has from 40 to 115 BCMR members, and individual BCMR panels are comprised from these pools. 46 By regulation, members of BCMR panels should be high-ranking civilians in the executive part of their military branch. 47 Three members constitute a quorum for conducting reviews of applications, except in the Coast Guard where three members make up each board, but only two members are necessary to constitute a quorum. 48 Although most applications must be reviewed by a panel of Board members, BCMR staff members may return applications without such review in the following cases: If the applicant does not complete and sign the application; If the applicant failed to exhaust all other administrative remedies (such as the DRB, if the fifteen-year DRB time limit has not expired); If the Board does not have jurisdiction; or If the application is a request for reconsideration but no new material evidence has been submitted BCMR Application Review 43 Survival Guide at See Discharge Upgrading at C.F.R (e)(2), 723.3, 865.4; 33 C.F.R (b). 46 For 2009 data, see the following responses to Raymond J. Toney s FOIA requests: Army Navy Air Force Coast Guard C.F.R (c)(1), 723.2(a), 865.1; 33 C.F.R Id C.F.R (e)(1). 18

19 Unlike DRBs, BCMRs rarely grant personal appearances. In fact, applications to BCMRs must pass through several stages of review before a board will even render a decision. According to the Army Review Board Agency s website, after a DD Form 149 application is received, the Army BCMR will generally go through the following steps in order: 1. Attempt to obtain records. If records are unavailable (for example, if the records are checked out by another government agency), then the ABCMR might ask the veteran to produce records or return the application. 2. The ABCMR may obtain advisory opinions from other Army staff elements. If that happens, the advisory opinions will be sent to the applicant for comment before further consideration. 3. The ABCMR may make administrative corrections without the need for a Board decision. 4. Board staff members called examiners prepare a brief for the Board s consideration, and the Board renders a decision that is final and binding. 50 Therefore, it is very important for an applicant to make sure that the records are complete and available so that the application will not be returned at the first stage. The applicant should request a copy of all records that the BCMR obtains, and the applicant should review those records to see if there are any documents the applicant did not already have. If the Board requests that the applicant provide a full record, then the applicant should include all materials that would be included in the official military personnel record. The applicant should carefully review and respond to advisory opinions issued by staff (item 2 above) so that any inaccuracies or unfairly prejudicial statements are noted before the Board makes a decision. Similarly, applicants should always ask for a copy of the examiner s brief (item number 4 above) in advance of the Board decision so that they may have a chance to respond to inaccurate or unfair contentions raised by the examiner. 5. Options for Reconsideration If an application has been denied by a BCMR, the applicant may request reconsideration. The Army BCMR has a one-year time limit for such requests for reconsideration, and there is conflicting information on whether the time limit can be 19

20 waived. Neither the controlling statute 51 nor the controlling DOD Instruction 52 provide information on the legality of time limits for requests for reconsideration to the BCMRs. Federal regulations state that if the request for reconsideration is received more than oneyear after the ABCMR has issued a decision, then the case will be returned without action and the applicant will be advised the next remedy is appeal to a court of appropriate jurisdiction. 53 However, the Army Review Board Agency s Applicant s Guide to Applying to the ABCMR states that the time limit can be waived if substantial relevant new evidence has been discovered. 54 In any case, a request for reconsideration must contain new material evidence, and generally an applicant must show the evidence was not reasonably available at the time of the previous application. 55 Technically, BCMR denials of applications without hearings are not considered final decisions, and applicants may submit new applications at any time. 56 As long as such applications are submitted with substantial new material evidence and/or argument not previously considered by the board, the BCMRs should reconsider the veteran s assertions. Advocates might also want to explain in the request for reconsideration why the evidence and/or arguments are new and material to ensure the boards do not classify the evidence or new documents as merely cumulative. Veterans can also appeal BCMR decisions in federal court under the Administrative Procedure Act, which has a 6-year statute of limitations from the date of the board decision. 57 Veterans may file suit in the district where the veteran was discharged, where the veteran currently resides, or in Washington, D.C., where the Secretaries of the service departments are located. 50 The Army Board for Correction of Military Records, (last visited April 24, 2011) U.S.C DoD Directive , March 8, C.F.R (4)(ii); DoD Directive , March 8, 2004, at Army Review Boards Agency, Applicant s Guide to Applying to the Army Board for Correction of Military Records 13 (2008), available at C.F.R (4), 723.9, 865.6; 33 C.F.R DAVID ADDLESTONE ET AL., MILITARY DISCHARGE UPGRADING, AND INTRODUCTION TO VETERANS ADMINISTRATION LAW : A PRACTICE MANUAL (1982) U.S.C

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